Today’s topic: Usage of “including but not limited to” in legal contracts.
In the context of legal drafting, the expression including but not limited to is a qualifier employed to present a non-exhaustive list.
It indicates that although certain examples are given, the larger group may also contain other things that have not been specifically mentioned.
What the phrase including but not limited to actually does is solve the issue of one being really afraid of omission.
Without that specification, a court might apply the principle of ejusdem generis. (Source: LexisNexis) This would, in turn, limit a clause only to the listed items. This would give rise to significant loopholes in contracts and policies.
In this blog, we will be breaking down the following things:
- Legal meaning of “including but not limited to.”
- Usage and examples.
- Is using “including but not limited to” redundant in contracts?
- Modern alternatives to the phrase in legal documents.
Therefore, if you want to know about these, keep reading!
“Including But Not Limited To” Legal Meaning
The phrase ‘including but not limited to’ acts as a very crucial drafting tool that is aimed at ensuring a list remains non-exhaustive.
Additionally, it provides “enlargement” to a definition, indicating that the particular examples present in the document are only illustrations and not the entire content of the category.
In everyday language and legal jargon, when it comes to the non-exhaustive principle, “including” is generally a word of expansion.
Therefore, by incorporating the words “but not limited to,” legal drafters clearly negate any suggestion that the list is exhaustive. In this way, they safeguard the provision from being seen as a closed set.
On the other hand, there is the ‘Ejusdem Generis‘ Shield. The main purpose of this phrase, as per this principle, is that it acts as a defense against the Ejusdem Generis rule.
As we have already mentioned above, this Latin maxim (“of the same kind”) means that if there is a general term after a specific list, the general term is limited only to the items of the same “class” or “genus” as those enumerated. (Source: Black’s Law Dictionary)
For example, a list of “cars, trucks and other vehicles” may be construed to exclude airplanes since they are not land-based.
Drafters use “including but not limited to” in order to explicitly override this rule, indicating that the opposite was their intention. In that way, they can give the general term the broadest possible meaning.
Proper Usage & Examples Of “Including But Not Limited To”
To use “including but not limited to” effectively, it is important that you place it strategically within a sentence. This helps ensure the “catch-all” protection applies to the correct category.
To make it easier for you to understand, below are contextual examples that show how this phrase functions across different industries.
Contextual Examples
Here are two examples from different practice areas, some of which are influenced by Law Insider:
1. Real Estate Agreements:
Here’s how one would place the phrase:
“The sale price includes all fixtures and fittings, including but not limited to, custom window blinds, built-in shelving, and light fixtures.”
This ensures that if a dispute arises over a smart-home hub without an explicit mention, one still considers it to be legally a part of the “fixtures” category.
2. Employment Contracts:
When it comes to corporate law, this is how a drafter would incorporate the phrase:
“Employee’s core responsibilities shall consist of high-level operations, including but not limited to, administrative support, project management, and team training.”
This protects the employer from a “that’s not my job” defense. Specifically, when assigning a task that falls under general operations, but no one had listed it particularly.
Grammar & Punctuation
Punctuation changes the “flow” and emphasis of the legal clause. According to The Chicago Manual of Style and Garner’s Modern English Usage, here is how to handle commas:
1. The Parenthetical Approach (Most Common):
Structure: “…including, but not limited to, [List].”
Usage: Use two commas to set the phrase apart. This makes the “but not limited to” an aside, emphasizing that the list is merely illustrative.
2. The Integrated Approach:
Structure: “…including but not limited to [List].”
Usage: Removing commas makes the sentence read faster and is increasingly common in modern “Plain English” drafting to reduce visual clutter.
Read Also: Specific Performance Of Contract – Legal Rules And Court Guidelines
Is ‘Including But Not Limited To’ Redundant In Legal Contracts?
It is a favorite topic among law experts to touch upon whether the phrase is a drafting necessity or just a “legalese” addition.
Today, major authorities, like Ken Adams (A Manual of Style for Contract Drafting), still hold the opinion that the term “including” by itself denotes a not-exhaustive list.
Simply put, the addition of “but not limited to” is, in fact, redundant since “to include” does not equal “to comprise only of.”
As a matter of fact, aiming at Plain English, a number of law firms have started eliminating these extra words. In this way, they plan to make their documents more concise.
On the other hand, quite a lot of lawyers decide to keep the phrase intact, which serves as a legal weapon.
They try to avoid a situation where an adversary or a strict judge would use the expressio unius rule – the fact that the mentioning of one thing excludes others. (Source: Practical Law)
In a very explicit manner, attorneys are basically “locking and bolting” the agreement so as to avoid narrow interpretations.
Read Also: Res Ipsa Loquitur: Legal Meaning, Elements, And Case Example
Modern Alternatives Of “Including But Not Limited To”
Swapping “including but not limited to” for shorter alternatives can significantly improve a document’s flow without sacrificing legal protection.
There are several alternatives available in the modern day. Some of them are as follows:
1. Including
The tone of such a phrase is professional. Which is why a lot of drafters often use it. It is clean and modern, devoid of any clutter – making it concise.
However, the risk of “hostile” narrow reading is something that remains. This is because courts, if the need arises, might apply restrictive canons of construction.
2. Such As
Secondly, “such as” is a popular choice for consumer-facing text or emails. And that is primarily because of its high readability and approachable tone.
However, one major disadvantage of this term is that it can sometimes feel less “binding” or formal than traditional legal strings. This may not suit high-stakes litigation.
3. Among Others
Finally, “among others” has also become a very popular alternative to “including but not limited to” because of its descriptive approach.
Drafters generally place it at the end of the list, and it is popular because of how easy it is to understand. However, sometimes it can feel like more of an afterthought than a legal safeguard.
